JUDGMENT : P.K. Tripathy, J. - Five accused persons faced Sessions Trial No. 3/56 of 1995 in the Court of learned Additional Sessions Judge, Bhadrak. Amongst them, the alleged conspirator and one of the main accused Smt. Pratima Mishra, the hired muscle men accused Sk. Mobarak and Sk. Hakim were acquitted by learned Additional Sessions Judge by granting them benefit of doubt because of insufficient evidence to sustain the charge u/s 302/34 of the Indian Penal Code against them. At the same time, on the basis of the evidence made available by the prosecution, he recorded the findings that the charge u/s 302/34 Indian Penal Code has been proved beyond all reasonable doubt as against the Appellant No. 1, Harihar Panda and Appellant No. 2, Baidhar ' Krushna Chandra Tripathy. 2. Nrusingh Charan Mishra and two deceased persons Rabindra Kumar Mishra and, Bahaduria ' Sadasiba Mishra are the sons of Ratnakar Mishra, a Brahmin Priest, who used to live at Kolkata along with his eldest son Nrusingh and earning by performing daily Puja in various shops and commercial establishments. Accused Pratima Mishra is the wife of Nrusingh Charan Mishra, but she stays in the matrimonial house in the district of Bhadrak. Accused Harihar is the brother in law (sister's husband) of accused Baidhar ' Krushna, Chandra Tripathy. Because of a quarrel with his elder brother, accused Harihar leaving his native village was staying in the house of accused Baidhar and he was in visiting term to the house of Ratnakar. It is alleged that he developed intimacy with Pratima and that illicit relationship could be seen by deceased Sadasiba. The latter scolded them and also threatened to report the matter to his father and elder brother. It is further alleged that to remove the obstruction for continuation of illicit relationship, the aforesaid, two accused persons hatched a conspiracy and also sought for assistance of hired criminals, i.e. accused Sk. Mubarak and Sk. Hakim, who belong to another village. 3. Ratnakar Mishra had constructed a new Pucca house at a distance of about 30 ft. from his old house. That premises was consisting of the newly constructed house, a bari and a small pond. By the date of occurrence, it had not been occupied by the family members and therefore in the night, both the deceased brothers were going to sleep there. from his old house. That premises was consisting of the newly constructed house, a bari and a small pond. By the date of occurrence, it had not been occupied by the family members and therefore in the night, both the deceased brothers were going to sleep there. In the night of 01.08.1994, both the deceased usually went and slept in that house. In furtherance of-the conspiracy hatched by the accused persons at about midnight they went being armed with fatal weapon like, knife. Both the brothers being in deep slumber, they did not respond to the calls given by Harihar, but deceased Sadasiba responded to the calls given by Pratima and he opened the door. He was attacked and done to death inside the house then and there by inflicting several knife blows. The sound of struggle and groaning of deceased Sadasiba resulted in awakening of deceased Rabindra. He was also attacked and injured Rabindra in injured condition could escape to the bari side and concealed in the banana bushes. Accused persons with the help of torchlight searched and spotted him and again dealt blows. Rabindra could escape up to the pond, where he was also attacked and there his dead body was left in the pond. 4. There was no eyewitness to the occurrence, but P.Ws. 6 and 7, two co-villagers stated before the I.O. that in the occurrence night, when they were returning from a neighbouring viilage from the house of the P.W.5, where they had gone to call the midwife for the delivery of child of P.W. 7, that in the occurrence bari they noticed focusing of torch light and heard some noise and therefore, they wanted to ascertain the reasons and focused their torch light into the bari and then they could spot both the Appellants and one of them being armed with a blood stained knife and that three other persons were there inside the campus, but they could not identify them. P.W. 5 is the other person, who is an adjoining neighbour of accused Pratima and deceased and he made statement that in the occurrence night at the relevant time, he also heard sound of Marigali Marigali etc. He came out, but finding no other sound coming from anywhere, he went and slept. P.W. 5 is the other person, who is an adjoining neighbour of accused Pratima and deceased and he made statement that in the occurrence night at the relevant time, he also heard sound of Marigali Marigali etc. He came out, but finding no other sound coming from anywhere, he went and slept. In course of investigations, accused persons were arrested, their statements were recorded including the statement of Appellant No. 1, leading to discovery of M.O. I and seizure of blood stained wearing apparels from him. 5. The accused persons denied to the charge u/s 302/34 of the Indian Penal Code and claimed, for trial. To substantiate the charge, prosecution examined 19 witnesses. Out of them P.Ws. 5, 6, 7 and 10 are the witnesses, who had occasion to see the accused persons or some of them at different times from the evening of that date till the time of occurrence. P.W. 8 is the son of the midwife and P.W. 14 is the father of the deceased and father-in-law of accused Pratima. According to the prosecution, extra judicial confession was made by her before him. P.W. 6 is a witness, who witnessed the statement Ext. 12 made by accused Harihar, which was recorded u/s 27 of the Evidence Act and thereafter, he gave recovery of the weapon of offence, which was seized under Ext. 13. P.W. 15 is the Doctor, who conducted post mortem examination on the dead bodies of both the deceased persons and also collected nail clippings of the accused persons. Ext. 22 is the post mortem report of deceased Rabindra, whereas Ext. 23 is the post mortem report of deceased Sadasiba. On examining the weapon of offence, i.e. M.O. XI, P.W. 15 gave his opinion report Ext. 24. The seized articles were forwarded to the State Forensic Science Laboratory, Rasulgarh and the report thereof by the Chemical Examiner and Serologist are Exts. 36 to 38. The documents belong to accused Harihar found with blood stained and seized from the spot in the bari, were also not only seized, but also exhibited as M.Os. VI to VIM, The wearing apparels of deceased and accused Harihar were also exhibited as M.Os. 6. Since no witness had seen the accused persons inflicting blows or causing injuries to either of the deceased persons, therefore the Trial Court recorded that there was absence of eyewitness to the occurrence. VI to VIM, The wearing apparels of deceased and accused Harihar were also exhibited as M.Os. 6. Since no witness had seen the accused persons inflicting blows or causing injuries to either of the deceased persons, therefore the Trial Court recorded that there was absence of eyewitness to the occurrence. He thus appreciated the evidence tendered by the prosecution as the circumstantial evidence so as to find out whether such evidence completes the chain of circumstance to unfailingly pointing the accusing finger at any or all the accused persons. 7. In that process, learned Additional Sessions Judge recorded the findings that both the deceased persons sustained homicidal death. Attack of the defence to suggest the death due to drowning of deceased Rabindra was ruled out with reference to the evidence of P.W. 15. Learned Additional Sessions Judge also did not find anything improper to draw any other inference than homicidal death for the dead body of the deceased Rabindra being found floating on the water in the pond. 8. Learned Additional Sessions Judge found the evidence of P.W. 14 relating to the extra judicial confession made by accused Pratima being not above suspicion and therefore, he did not accept that piece of circumstantial evidence. If that evidence would have been accepted, then the motive of the accused person to commit the crime, the manner in which the other two accused persons were hired for committing the crime and the role played by each of the accused persons in that aspect, could have been gathered by that inculpatory statement. 9. Learned Additional Sessions Judge relying on the evidence of the I.O., the spot map and the statement of P.W.14 and others held that occurrence took place in the newly constructed house where Sadasiba was done to death and thereafter deceased Rabindra who was first assaulted inside the room secondly near the banana bushes and ultimately near the pond. That occurrence took place about the mid-night time between 12 to 1 A.M. Learned Additional Sessions Judge then referred to the evidence of P.Ws.6 and 7. That occurrence took place about the mid-night time between 12 to 1 A.M. Learned Additional Sessions Judge then referred to the evidence of P.Ws.6 and 7. They stated in their evidence that on the request of P.W.7, P.W.6 accompanied him to call Dhai (mid wife) i.e. the mother of P.W.8 from the neighbouring village and because of absence of the mid-wife in her house, as intimated by P.W.8, they were returning and in the occurrence premises, they saw movement of the torch light and that is how they had occasion to focus their torch light and could discover both the Appellants and at that time, Appellant Harihar was holding the blood stained knife and that they threatened P.Ws. 6 and 7 with a direction to go away from that place. Similar evidence of P.W.5 that at the relevant time he heard the sound raised by one of the deceased was relied on. Learned Additional Sessions Judge found ample corroboration to the aforesaid statements of P.Ws. 5, 6 and 7 not only from the mouth of P.Ws.8 and 10, but also from the conduct of accused Harihar giving recovery of M.O.XI under seizure list Ext.13, after giving his statement Ext.12. Learned Additional Sessions Judge also found further corroboration in the above context from the report of SFSL relating to detection of human blood, Group-A, not only from the spot, wearing apparels of the deceased but also from the weapon of offence and the, wearing apparels of accused Harihar. Therefore, on conscious consideration of all such circumstances and evidence thereof, learned Additional Sessions Judge recorded that the chain of circumstance is complete to prove the charge against accused Harihar and Baidhar; but in the absence of evidence of. P.Ws 6 and 7 identifying accused Pratima, Sk. Mubarak and Sk. Hakkim, being the three other persons seen by them in the occurrence premises, those three accused persons were granted the benefit of doubt. Accordingly, learned Additional Sessions Judge acquitted the above named three accused persons and convicted the Appellants u/s 302/34 IPC. 10. Though Vaklatnama for both the Appellants at the time of filing of appeal was filed by Mr. Palit and his associates, but at a later stage, Appellant No. 1 with consent of Mr. Palit engaged Mr. B.P. Tripathy and his associates to appear and argue for him. 10. Though Vaklatnama for both the Appellants at the time of filing of appeal was filed by Mr. Palit and his associates, but at a later stage, Appellant No. 1 with consent of Mr. Palit engaged Mr. B.P. Tripathy and his associates to appear and argue for him. In course of argument learned Advocates appearing for each of the Appellants argued separately but they raise similar issue while challenging the impugned order of conviction. 11. Learned Counsel for the Appellants argues that the evidence of P.Ws. 6 and 7 that they saw accused Harihar holding a blood stained knife is not acceptable being improper and apart from that because of contradiction to that effect in their statements recorded u/s 161 Code of Criminal Procedure. Learned Standing Counsel replying in that context states that there was no question of seeing blood stained knife in dark night but it was with the help of torchlight which was in possession of P.Ws. 6 and 7 and the contradiction which has been confronted to P.Ws. 6 and 7 and thereafter to P.W.17 (I.O.) is trivial in nature and does not discredit the credibility of P.Ws. 6 and 7. 12. P.W.15 is the doctor who conducted autopsy on the, dead bodies of deceased Rabindra and Sadashiba. According to him, Rabindra had nine incised injuries of different dimensions on the right, side of breast with lungs protruding through it, right clavicle, right side neck, right eye, glapellas, left shoulder, left fore-arm, right shoulder back, left thigh, left side of "neck and back of neck. He also found two stab injuries on the back of neck. According to him all the aforesaid injuries were ante mortem in nature and cause of death was due to haemorrhage and shock because of the aforesaid multiple injuries. P. W. 15 opined that injury No. 2, i.e. incised injury on the right side breast with lungs protruding through it and injury No. XVI, i.e. stab injury on back of neck at C-7 level were individually sufficient to cause death in ordinary course of nature, whereas all the injuries taken together could cause death. He also opined that all the injuries were caused by sharp cutting and stabbing weapon like knife and the deceased might have died within fifteen minutes of the infliction of the injuries. He also opined that all the injuries were caused by sharp cutting and stabbing weapon like knife and the deceased might have died within fifteen minutes of the infliction of the injuries. He further stated that the washer woman skin on the palm of the deceased indicated that the hands remained submerged in water for a period of about six to ten hours. 13. On examining the dead body of Sadashiba, P.W. 15 found as many as eight incised injuries on the left side of chest with lungs protruding through it, left shoulder, lower and upper sternum on the neck cutting the trachea and esophagus, left super scapula region and back of right arm. He also found one stab injury on left 8th/9th rib. Because of the aforesaid external injuries corresponding to the relevant limb of the body the injury below sternum injured liver and stomach by bisecting it and causing four inches penetration on left lobe of the liver, heart was perforated on the right side, the right lower lobe of the lungs was injured. Similar opinion was given about the homicidal death, relating to the nature of the weapon, cause and time of death. He also deposed that the knife, M.O.- II could be the possible weapon of offence. P.W. 15 also opined that deceased Rabindra did not die due to drowning. In course of cross-examination of P.W. 15 except putting forward hypothetical question on possibility of the death of Rabindra due to drowning, the opinion of P.W. 15 relating to homicidal death of both the deceased because of ante mortem injuries possible by weapon like M.O.- II was not challenged. Therefore, in this case homicidal death of both the deceased due to the bodily injuries is a proved fact. 14. On perusal of evidence on record, we do not find any merit in the argument advanced by the Appellants inasmuch as it is in the evidence of P.Ws. 6 and 7 that they could see the knife in the hands of accused Harihar by the help of illumination available from the torch light and because of that light also they could identify both of them very clearly. The contradiction, which was confronted to P.Ws. 6 and 7 that they could see the knife in the hands of accused Harihar by the help of illumination available from the torch light and because of that light also they could identify both of them very clearly. The contradiction, which was confronted to P.Ws. 6 and 7 was to the effect that in their statements u/s 161, Code of Criminal Procedure they did not state that they had seen accused Harihar in possession of an opened knife stained with blood. Here the contradiction is not on whether Harihar was holding a bloodstained knife but relating to the condition of knife, i.e. if it was opened or covered. Admittedly, in course of investigation, the cover of the knife has been recovered from the occurrence premises. Under such circumstances, the contradiction does not appear either to be material or verily affect so as to discredit the evidence of P.Ws. 6 and 7 when they are clear, and specific in their statement to identify both the Appellants and also Appellant Harihar being in possession of the blood stained knife. 15. Evidence of the aforesaid two witnesses so also of P.W.5 is attacked on the ground of their delayed examination. Admittedly, each of them was examined not immediately after the occurrence but after several days. In that respect, P.W.6 explained the delay by stating that on the following day morning on hearing the cry from the place of the occurrence he went and found both the deceased lying dead and therefore out of fear of both the Appellants, he went to his sister's house at another village and stayed there for about 12 days. There also he fell ill. When he returned to his village and learnt that accused persons had already been arrested, on 13.8.94 he went to the P.S. and voluntarily made the statement about the occurrence. In course of cross examination by either of the Appellants nothing substantial could be brought from the mouth of this witness so as to discredit the aforesaid explanation. Similarly, P.W.7 explained that on the following day on discovery of murder of deceased persons, he felt terrorized, his newborn daughter became sick and therefore with his wife and newborn baby he went to his father-in-law's house and returned on 11th or 12th day. Similarly, P.W.7 explained that on the following day on discovery of murder of deceased persons, he felt terrorized, his newborn daughter became sick and therefore with his wife and newborn baby he went to his father-in-law's house and returned on 11th or 12th day. While he was in his father-in-law's house he got information that accused persons had been arrested and therefore on 13.8.1994 he went to the P.S. and made his statement. In his case also nothing was brought during cross-examination to discredit the aforesaid explanation. In case of P.W.5 he stated that he ordinarily resides at Cuttack and after the occurrence in the early morning he. left the occurrence village without knowing anything about the murder and when he came to know from the newspaper about the murder of the two deceased persons and arrest of the accused persons then he could co-relate the shout which he had heard in the occurrence night and accordingly he voluntarily went and disclosed that information before the I.O. 16. Appellants have relied on the cases of Madan Naik v. State 1983 CLR 189 and Ratnakar Palei and Anr. v. State 1990 (I) OLR 227 to take advantage of delayed examination of P.Ws. 5, 6 and 7. In reply, learned Standing Counsel has relied on the cases of Lalli alias Chiranjib Bhowmick Vs. State of West Bengal, and Banti alias Guddu v. State of Madhya Pradesh 2003 (7) Supreme 691 . At the same time, learned Standing Counsel argues that the above noted citation relied on by the Appellant are not applicable to the facts and circumstances of the case. 17. While This Court in the aforesaid two citations of the Appellants granted benefit to the accused, the Apex Court has not considered delayed examination as the sine qua non for disbelieving the prosecution, if the delayed examination is properly explained. At this stage, it is appropriate to quote paragraph-17 in the case of Banti alias Guddu (supra) wherein their Lordships held: 17. As regards delayed examination of certain witnesses, This Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down, as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It cannot be laid down, as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accept the same as plausible, there is no reason to interfere with the conclusion See Ranbir and Others Vs. State of Punjab, and Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir. Consequently, we find no justifying reason or ground substantiated on behalf of the Appellants to interfere with the concurrent findings recorded by both the Courts based on relevant, cogent and trustworthy evidence adduced by the prosecution to prove the guilt of the Appellants beyond reasonable doubt. On careful reading of the evidence of P.Ws.5, 6 and 7 the trial Court, who had the advantage to notice the demeanour of the witnesses, accepted the explanation on delayed examination and did not utter any adverse view against the witnesses. The trial Court found them to be reliable and credible. On perusal of the self-same set of evidence we also do not notice any circumstance emerging from their evidence so as to entertain a doubt on their veracity or credibility. Therefore relying on the above quoted ratio we accept that the explanations offered in this case are sufficient to account for the delay. 18. One more contention has been raised by Appellants to discredit the version of P.Ws.6 and 7 by stating that non-examination of the mother of P.W.8 and non-seizure of torch light from P.Ws.6 & 7 results in lack of corroboration to the evidence of the aforesaid two witnesses and therefore, their evidence should be disbelieved. We do not find any merit in the argument inasmuch as when the movement of P.Ws.6 & 7 in the night is not under challenge when the evidence of P.W.8 has not been discredited that P.Ws.6 & 7 had gone to his house to call his mother, non-examination of the mother of P.W.8 is in no way cause a missing link. When the torchlight used by P.Ws.6 & 7 has no nexus with the crime, non-seizure thereof is of no consequence. Under such circumstances, the aforesaid argument is heard to be rejected. 19. When the torchlight used by P.Ws.6 & 7 has no nexus with the crime, non-seizure thereof is of no consequence. Under such circumstances, the aforesaid argument is heard to be rejected. 19. Learned Counsel for Appellant No. 1 argues that M.O. XI was recovered in the village of his father-in-law from a cattle shed but surprisingly, no witness from that village is a witness to leading to discovery u/s 27 of the, Evidence Act or to the seizure list Ext.13. The aforesaid argument also does not bear any merit inasmuch as the statement Ext.12, which was made by Appellant No. 1, was recorded in presence-of witnesses and one amongst, them is P.W.3. In his evidence P.W.3 wholeheartedly supported the prosecution case. Notwithstanding the cross-examination his evidence remains unshaken relating to leading to discovery, recovery of weapon of offence and seizure thereof. There is no provision in the Code of Criminal Procedure to insist for presence of a witness from the village of recovery. 20. Learned Counsel for Appellant No. 2, argues that when he was not a party to any statement u/s 27 of the Evidence Act and when nothing incriminating has been recovered from his possession, therefore, he cannot be connected with the crime. The aforesaid argument of Appellant No. 2 also does not bear any merit inasmuch as the trial Court has not convicted him by taking the support of the evidence u/s 27 of the Evidence Act or presence of human blood Group "A" in the wearing apparels of Appellant No. 1. On the other hand, learned trial Court found the evidence of P.Ws. 6 and 7 to be sufficient enough to show presence of Appellant No. 2 at the spot where the co-accused was holding a blood stained knife and on the following day morning, two dead bodies, victim of ghastly murder, were recovered from the premises. 21. The ultimate argument of the Appellant in challenging the order of conviction is about acquittal of the co-accused persons and particularly acquittal of accused Pratima. Learned Counsel for the Appellant argues that when the king pin of the alleged crime was Pratima and when she conspired to take revenge on Sadasiva and when she has been acquitted besides the hired criminal, then conviction of the Appellants is far-fetched. Learned Counsel for the Appellant argues that when the king pin of the alleged crime was Pratima and when she conspired to take revenge on Sadasiva and when she has been acquitted besides the hired criminal, then conviction of the Appellants is far-fetched. The aforesaid argument is again without any merit, inasmuch as prosecution projected the case as Pratima being the person, who hatched the conspiracy, paid money for bringing the hired criminals. But the evidence of witnesses amply proved that these Appellants were at the spot of occurrence together with three other persons. Those three persons could not be identified, whereas the two Appellants could be identified by P.Ws. 6 and 7 because of use of the torchlight. Therefore, the Trial Court is right in his approach in acquitting other accused persons by granting benefit of doubt. Apart from that, once the allegation of murder is proved against the Appellants through clear and cogent evidence, they cannot argue for advantage on the ground of acquittal of the co-accused persons inasmuch as there cannot be perpetuate in illegality. 22. The Appellants do not advance any other arguments nor raised any other points. 23. For the reasons recorded above, we do not find any illegality or mistake in the order of conviction of the Appellants. Therefore, we dismiss the Criminal Appeal. 24. Appellant No. 2 Baidhar Tripathy alias Krishna Chandra Tripathy, who was granted bail on 19.07.1996 in Misc. Case No. 199 of 1996, is directed to surrender to the custody to serve the sentence. If he fails to surrender within a period of two months then it would be appropriate for the Trial Court to secure his custody to serve the sentence. Final Result : Dismissed